O'Malley Tunstall PLLC
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March 2012 Archives

Applying for Social Security Disability? What your attorney is doing to prepare for your hearing and assist in your claim.

Before the Hearing:  What is my attorney doing for me? Since you cannot read your attorney's mind nor see everything their office is doing on your behalf, we thought it might be useful to understand what happens while you wait for a hearing. Applying for Social Security Disability can be a long and tedious process.  Many people choose to hire attorneys to help them navigate this process, file the paperwork and make the best legal argument that could result in obtaining benefits.  In the early stages of applying for disability (i.e. the initial application and reconsideration), your attorney will assist you with paperwork and making sure everything is filed on time, make sure the Social Security Administration is aware of your medical treatment locations and begin the long process of obtaining all your medical information and medical support statements.  It is important to remember that while an attorney can assist you with this paperwork, the attorney or his/her office may be calling you to obtain the information, such as treatment information or what you are physically able to do around the home that only you would know. Once your claim reaches the hearing level, having an attorney is even more important in preparing your claim.  Waiting for a hearing can be very frustrating.  Once you request a hearing in North Carolina, it can be 12 to 15 months before you actually appear before the Administrative Law Judge (ALJ). Unfortunately, other than in very specific circumstances such as terminal illness, there is nothing anyone-you or your attorney-can do to reduce the amount of time you have to wait for a hearing.  However, our attorneys always review their cases to see if a request for on-the-record decision would be appropriate. During the time prior to the hearing, the attorney is gathering your medical records and submitting them to Social Security, requesting support of your disability from your doctors and keeping track of your case through the hearing office.  Your attorney is also working on the legal argument that they will use at the hearing as to why you are disabled.  Simply submitting the medical records is not always enough.  Your attorney is reviewing your medical records and piecing together all of the things that prevent you from being able to work so it can be presented to the ALJ in such a way that shows you are disabled within the rules of Social Security. It is important to remember that you play a vital role in your application for disability benefits; even if you hire an attorney.  You have to keep your attorney updated on your doctor's appointments and any new health problems that may arise.   If you work with your attorney, they will be better able to represent you when it is time for the hearing. Applying for Social Security Disability can be a frustrating experience.  Hiring an attorney helps relieve some of this frustration and stress.  While you still need to be an active part of the process, you have the comfort of knowing someone is advocating on your behalf and doing everything they can to get you the benefits you deserve.

O'Malley Tunstall, PLLC: Silver Sponsors of the Vidant Edgecombe Hospital Development Council Annual Gala

O'Malley Tunstall, PLLC are Silver Sponsors of the Vidant Heritage Hospital Development Council Annual Gala to be held on April 14th at the Edgecombe Community College.  The Vidant Heritage Hospital Development Council raise money each year for projects which benefit the local community and the local hospital.  This year will be the second of three years in which proceeds will benefit the expansion project of our existing Emergency Room  at the renamed Vidant Edgecombe Hospital (formerly Heritage Hospital) which benefits all citizens of Edgecombe County. Last year, more than 23,500 patients were treated at the Vidant Edgecombe Hospital Emergency Department.  The annual Gala directly helps raise money for facility improvements and expansions and programs and resources supported by our local hospital. Pictured below is Susan O'Malley and Joe Tunstall presenting their sponsor check to Bob Nicolosi, Chairman of the Friends of Vidant Edgecombe Hospital.  Please come out in support of this worthy cause on April 14th at the Edgecombe Community College.  Please click for contact information.

Medical Device problems continue for patients without judicial oversight

The New Englad Journal of Medicine, one of the most widely read medical journals, had two interesting artilces 1 and 2 this week on heart device failures even after Food and Drug Administration (FDA) approval.  The first  article is particularly troubling as the Supreme Court ruled that a plaintiff may not sue under state law to challenge the safety or effectiveness of a medical device to which the FDA has given "premarket approval."  Riegel v. Medtronic, Inc., 2008 WL 440744 (Feb. 20, 2008).   The premarket approval type of FDA approval--which reflects the agency's determination that the product is reasonably safe and effective for human use--establishes certain federal requirements that preempt state law remedies, including common-law claims for strict products liability, breach of warranty, and negligent design.  This decision, when it first came out in 2008, represented a significant victory for medical device manufacturers, protecting them from the risk of state court damage awards for devices that have been duly approved by the FDA. In the article, Riata and Riata ST implantable cardioverter-defibrillator (ICD) leads (St. Jude Medical), which are implanted in approximately 79,000 patients in the United States were discussed as having failure such that the leads came out of their protective coating and were only noticable upon x-ray or after study following an adverse event. The scary implication of the article is that the drug device manufactorer has little to no incentive to monitor the adverse effects post FDA approval.  In fact, the postmarketing surveillance system put in effect by the FDA is without backbone or ability to fully protect patients. As the Medtronic Sprint Fidelis lead involving 268,000 patients who received leads that had the potential to fracture, have finally been resolved via litigation, it seems that once again only through litigation will the drug device manufacturer have to protect its patients who are the most vulnerable... only the Supreme Court in Riegel v. Medtronic has hampered the ability of the attorneys who can get justice from protecting those in need.  Its time to recognize that our American system of government with the proper checks and balances, which includes an active judiciary, be given its proper due as the best system of government in the world and our Supreme Court should take into consideration that self regulation by an industry without proper judicial oversight is merely a pipedream.

Personal Injury Trial: Evidence of Automobile Insurance

One of the most difficult things to explain to a client is that at a personal injury trial in North Carolina you cannot mention the defendant's automobile insurance.   The jury is only told the dispute between the injured party and the actual defendant who created the situation.   The actual rules of evidence only prohibit the mention of automobile insurance for issues involving ability to pay; however, practically if insurance is mentioned judges are very reluctant to allow any testimony on those issues. Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.  N.C. R. Evid. § 8C-1,8C-1411N.C. Gen. Stat. Ann. § 8C-1,§ 8C-1,8C-1 Rule 411 The above is the actual rule of evidence used by the courts in determining what witness are allowed to discuss. In Fincher v. Rhyne, 266 N.C. 64, 68-70, 145 S.E.2d 316, 318-20 (1965) the court discussed the general reason why the rule was promulgated and what the court looked at in deciding that you cannot mention automobile insurance in North Carolina. 'Ordinarily, in the absence of some special circumstance, it is not permissible under our decisions to introduce evidence of the existence of liability insurance or to make any reference thereto in the presence of the jury in the trial of * * * cases' where the relief sought is damages for injuries caused by negligence. Taylor v. Green, 242 N.C. 156, 87 S.E.2d 11; Jordan v. Maynard, 231 N.C. 101, 56 S.E.2d 26; Duke v. Crippled Children's Comm., 214 N.C. 570, 199 S.E. 918; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726; Stanley v. Whiteville Lumber Co., 184 N.C. 302, 114 S.E. 385; Lytton v. Marion Manufacturing Co., 157 N.C. 331, 72 S.E. 1055. This rule is almost universal. 21 Appleman: Insurance Law and Practice, s. 12832; Anno.-Informing Jury of Liability Insurance,  **31956 A.L.R. 1418; Anno.-Showing as to Liability Insurance, 4 A.L.R.2d 761. Since the enactment of compulsory insurance statutes, it has been held in a few jurisdictions, including California, Georgia and South Carolina, that reference to liability insurance is not error. A.L.R.2d Supplement Service (1960) p. 297. However, our decisions, since the enactment of the Vehicle Financial Responsibility Act of 1957 (G.S. §§ 20-309 to 20-319), have adhered to the general rule above stated. Whitman v. Whitman, 258 N.C. 201, 128 S.E.2d 249 (1962); Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961); Hoover v. Gregory, 253 N.C. 452, 117 S.E.2d 395, 100 A.L.R.2d 341 (1960). From the opinion in Hoover, Stansbury finds 'indications that a departure from the rule will not always be censured as severely in the future as it has in the past.' Stansbury: North Carolina Evidence, 2d Ed. s. 88. The existence of insurance covering defendant's liability in a negligence case is irrelevant to the issues involved. It has no tendency to prove negligence or the quantum of damages. It suggests to the jury that the outcome of the case is immaterial to defendant and the insurer is the real defendant and will have to pay the judgment. It withdraws the real defendant from the case and leads the jury 'to regard carelessly the legal rights' of the real defendant.  *69 'No circumstance, a court has said, is more surely calculated to cause a jury to render a verdict against a defendant, without regard to the sufficiency (weight) of the evidence, than proof that the person against whom such verdict is sought is amply protected by indemnity insurance.' 56 A.L.R. 1422. These reasons for exclusion are as valid under compulsory coverage as under voluntary insurance. But it is argued that it is unrealistic to attempt to conceal from juries a fact of common knowledge-the compulsory requirement that all vehicles be insured. Liability insurance coverage is required by law in this State, and such requirement is, of course, a matter of common knowledge, but there are many valid reasons for excluding evidence of, or reference to, such coverage in addition to those mentioned above. There are instances in which insurance exists but under the particular circumstances there is no coverage. The limits of coverage vary-the law requires $5000 coverage for injury to one person; all coverage in excess of this amount is voluntary. The jury might infer from the mention of insurance that there is coverage to the extent of the damages prayed for, or they might guess from some reference made that the coverage is only $5000 and be thereby influenced to award inadequate damages. Furthermore, the Vehicle Financial Responsibility Act of 1957 permits the possibility of time gaps in insurance coverage, that is, short periods in which vehicles are uninsured. Faizan v. Grain Dealers Mutual Insurance Co., 254 N.C. 47, 55, 118 S.E.2d 303. If it is realistic to allow testimony and references to liability insurance, it would be more realistic to permit the introduction of the terms of the policy and all questions of coverage in the particular case. Such injection of irrelevant issues would be insupportable. The courts cannot, of course, control the deliberations of the jury when they have retired to make up their verdicts, and cannot 'black out' segments of their thinking related to matters of common knowledge. But the courts can now, just as effectively as before the enactment of compulsory liability insurance laws, control the trial and exclude irrelevant facts and confine the evidence and the matters arising during the course of the trial to the issues involved. Where testimony is given, or reference is made, indicating directly and as an independent fact that defendant has liability insurance, it is prejudicial, and the court should, upon motion therefor aptly made, withdraw a juror and order a mistrial. Luttrell v. Hardin, supra; Allen v. Garibaldi, 187 N.C. 798, 123 S.E. 66; Stanley v. Whiteville Lumber Co., supra; Lytton v. Marion Manufacturing Co., supra. But there are circumstances in which it is  **320 sufficient for the court, in its discretion, because of the incidental nature of the reference, to merely instruct the jury to disregard it.  *70 Keller v. Caldwell Furniture Co., 199 N.C. 413, 154 S.E. 674; Lane v. Paschall, 199 N.C. 364, 154 S.E. 626; Fulcher v. Pine Lumber Co., 191 N.C. 408, 132 S.E. 9; Gilland v. Carolina Crushed Stone Co., 189 N.C. 783, 128 S.E. 158; Bryant v. Welch Furniture Co., 186 N.C. 441, 119 S.E. 823; Norris v. Holt-Morgan Mills, 154 N.C. 474, 70 S.E. 912. Fincher v. Rhyne, 266 N.C. 64, 68-70, 145 S.E.2d 316, 318-20 (1965). In 2004 the court still considered the Fincher case as controlling as to automobile insurance.Campbell v. McIlwain, 163 N.C. App. 553, 556-57, 593 S.E.2d 799, 802 (2004) Generally, "[w]here testimony is given, or reference is made, indicating directly and as an independent fact that defendant has liability insurance, it is prejudicial, and the court should, upon motion therefor *557  aptly made, withdraw a juror and order a mistrial." Fincher v. Rhyne, 266 N.C. 64, 69, 145 S.E.2d 316, 319 (1965). However, " there are circumstances in which it is sufficient for the court, in its discretion, because of the incidental nature of the reference, to merely instruct the jury to disregard it." Id. at 69, 145 S.E.2d at 319-20. " The decision of whether a mistrial is required to prevent undue prejudice to a party or to further the ends of justice is a decision vested in the sound discretion of the trial judge." Medlin v. FYCO, Inc., 139 N.C.App. 534, 540, 534 S.E.2d 622, 626 (2000), disc. rev. denied, 353 N.C. 377, 547 S.E.2d 12 (2001) (holding that the trial court did not abuse its discretion in denying defendant's motion for a mistrial based on a witness' mention at trial of defendant's relationship with defendant's insurer).  Campbell v. McIlwain, 163 N.C. App. 553, 556-57, 593 S.E.2d 799, 802 (2004)

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